Minton v. State

• Decision Date: 02 October 1939
• Docket Number: 4127
• Citation: 131 S.W.2d 948,198 Ark. 875
• Parties: MINTON v. STATE
• Court: Arkansas Supreme Court

131 S.W.2d 948

198 Ark. 875

MINTON v. STATE

4127

Supreme Court of Arkansas

October 2, 1939

Appeal from Prairie Circuit Court, Southern District; W. J Waggoner, Judge; reversed.

Judgment reversed and cause remanded for new trial.

John D Thweatt, J. J. Screeton and Cooper Thweatt, for appellant.

Jack Holt, Attorney General, and Jno. P. Streepey, Asst. Atty General, for appellee.

OPINION

SMITH, J.

Appellant was found guilty of involuntary manslaughter, and given a sentence of one year in the penitentiary, upon his trial, under an indictment charging him with the crime of murder in the first degree, alleged to have been committed by shooting and killing one W. A. Allen.

The partisanship of the witnesses who testified in the case is very apparent, and the testimony cannot be reconciled. It abundantly sustains the verdict; indeed, appellant insists that under the testimony he should either have been found guilty of murder or should have been acquitted, and he assigns as error the action of the court in submitting to the jury the question whether he was guilty of involuntary manslaughter, the crime for which he was convicted.

We think no error was committed in this respect, notwithstanding the fact that the testimony offered on appellant's behalf was to the effect that he had killed Allen while attempting to arrest him for a misdemeanor committed in his presence; that Allen resisted arrest and assaulted appellant with the blackjack, or policeman's club, which he took from appellant, who fired the fatal shot in his necessary self-defense.

The court gave at appellant's request an instruction, in which the jury were told that if appellant was making a lawful arrest, he might use such force as was necessary to overcome Allen's resistance, but modified it by adding the phrase, "acting without fault or carelessness on his part." An exception was saved to this modification.

The instruction was properly modified, and, as modified, conforms to the law as declared in the case of Deatherage v. State, 194 Ark. 513, 108 S.W.2d 904, in which case, as in this, the accused was convicted of the crime of involuntary manslaughter, where the defense interposed was that the accused killed the deceased in attempting to arrest him. It was there said: "'Although,' as it has been said, 'officers of the law are clothed with sanctity' and 'represent its majesty,' their right in resisting an assault can rise no higher than that of one in the exercise of the right of self-defense, a right which existed before the promulgation of any law, one inherent to man in the nature of things. Therefore, the same rule applies to officers in resisting an assault and in exercising a lawful act under the circumstances; that is to say, before taking human life, they must at least act with due care and circumspection."

Here, the testimony raises the issue whether appellant, even though he was attempting to effect a lawful arrest, acted with due caution and circumspection, or, as the modified instruction said, "without fault or carelessness on his part."

The testimony on the part of the state was to the effect that appellant was not attempting to arrest Allen; but the testimony offered by appellant is abundantly sufficient to present that issue. This testimony was to the effect that Allen was staggering drunk, as one witness testified, and wild and crazy drunk, according to the testimony of another witness. In this condition, Allen went to the White River Inn, a resort about a mile from DeValls Bluff, which was operated as a restaurant and a dance hall. Beer was sold there. Allen attempted to dance with some girls with whom he was not acquainted, and he cursed them vilely when they refused to dance with him. The proprietor of the place testified that Allen grabbed one of the ladies and attempted to dance with her; that Allen was too drunk to dance, and he attempted to take him off the dance floor, "when Allen came up with a knife in his hand." Appellant, who is the constable of the township, came to the proprietor's assistance, and Allen was placed in a truck and appellant started to DeValls Bluff to place Allen in jail. Allen protested that he would not be arrested. Witnesses Miles and Nicholson testified that appellant told Allen he was under...